Thursday, August 6, 2009
Posted by D. Daniel Sokol
ABSTRACT: In Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, the Supreme Court discarded a half century’s worth of settled doctrine regarding pleading—the key to access to the federal courts—starting anew with a heightened standard that threatens to leave many plaintiffs out in the cold. Twombly and Iqbal ushered in “plausibility” pleading and effectively retired “notice” pleading as the operable standard of Federal Rule of Civil Procedure 8(a)(2). No longer is the role of the complaint merely to give notice of the plaintiff’s claim to enable the defendant to answer; rather, the complaint now must present sufficient factual allegations to give rise to a plausible inference of wrongdoing. This change bodes poorly for plaintiffs’ access to the federal courts and may have a ripple effect on the entire civil justice system.
The debate over the proper role of pleading in contemporary litigation has exploded since Twombly and Iqbal, with motions to dismiss based on those cases now the procedural device du jour. On one side, the defense bar and major corporations praise the advent of plausibility pleading, claiming that it is long overdue and necessary to protect defendants from alleged widespread frivolous and abusive litigation, conserve judicial resources, and protect American industry and governmental entities from the high costs of discovery and trial. Arrayed against that view are the plaintiffs’ bar and civil rights and consumer groups who argue that plausibility pleading not only will weed out frivolous claims but also will terminate meritorious cases prematurely, further erode the right to a meaningful day in court and the right to jury trial, and increase the burden on small plaintiffs asserting claims against well-funded defendants. Although Twombly and Iqbal have provided new fuel for a long simmering fire, the current controversy is merely the most recent manifestation of a decades-old ideological debate over what is the higher litigation value: access to the federal courts or efficiency and economy in disposing of claims.